Dismissed

Smt Fatima v. Sri Sannalingappa

Karnataka HC14 Jun 2024RFA/561/2009

Case brief

AI extract

What is this about?

Three regular first appeals were filed by the legal representatives of the appellant Fatima challenging a common judgment and decree. The Court upheld the trial Court's finding that the respondent obtained title to the entire property under Section 41 of the Transfer of Property Act via ostensible ownership. The appeals were dismissed, and possession was directed to be handed over.

What did the court decide?

The appeals were dismissed. The appellants are direccted to hand over vacant possession of the suit schedule properties within three months and pay mesne profits.

Smt Fatima Vs Sri Sannalingappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:21453 RFA No. 561 of 2009 C/W RFA No. 560 of 2009 RFA No. 562 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 561 OF 2009 (PAR/INJ)

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C/W

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REGULAR FIRST APPEAL NO. 560 OF 2009 (POS), REGULAR FIRST APPEAL NO. 562 OF 2009 (P-INJ)

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IN RFA NO 561 OF 2009 BETWEEN:

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SMT. FATIMA,

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AGED ABOUT 35 YEARS,

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D/O LATE MOHAMMED IBRAHIM. SINCE DEAD BY LR'S

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1(a) BEEVI UMMA,

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AGED ABOUT 71 YEARS,

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W/O LATE HAJJI M MOHAMMED IBRAHIM.

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1(b) MR. HUSSAIN M AGED ABOUT 49 YEARS.

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Digitally signed by NANDINI R Location: High Court of Karnataka

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1(c) MR. HANNAN, AGED ABOUT 49 YEARS.

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1(d) MR. MOHIDEEN, AGED ABOUT 47 YEARS. DEAD.

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1(e) MR. MOHAMMED NOOR, AGED ABOUT 44 YEARS.

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ALL ARE S/O LATE HAJJI M MOHAMMED IBRAHIM, ALL ARE R/O MEPURATH HOUSE, THAZEPALAM TIRUR, MALLAPURAM DIST., KERALA.

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...APPELLANTS

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(BY SRI A GUNASHEKARAN, ADVOCATE FOR A1 [a to c & e]; APPEAL AGAINST A1(d) IS ABATED V/O DATED 02.08.2023)

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AND:

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SRI SANNALINGAPPA, S/O LATE CHIKKAPPAIAH, C/O K.C. NARAYANAPPA, NO.314/A 1^ST FLOOR, 7^TH MAIN, VYALIKAVAL, BANGALORE - 3. REP.BY HIS SON GPA SRI YEERAPPA SINCE DEAD BY HIS LRS.

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SRI R.S.YEERAPPA, AGED ABOUT 48 YEARS, S/O. LATE SANNALINGAPPA, NO.749 III BLOCK, RAJAJINAGAR, BANGALORE-10.

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SRI JAYARAMA REDDY, AGED ABOUT 42 YEARS, S/O LATE SANNALINGAPPA, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. R.S.NINGAMMA, AGED ABOUT 36 YEARS, W/O.LAKSHMAN, C/O JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. ESWARAMMA, AGED ABOUT 34 YEARS, W/O. RAMAKRISHNAPPA, C/O. JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. NAGAMMA, AGED ABOUT 32 YEARS,

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W/O.NAGARAJU, C/O.JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT.SAKAMMA, AGED ABOUT 30 YEARS, W/O. JAYAPPA, C/O. JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ. TUMKUR DIST.-561 202.

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…RESPONDENTS

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(BY SRI K.K VASANTH, ADVOCATE FOR R1; SRI B.N MURALIDHAR, ADVOCATE FOR R2 TO R6)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE ORDER DATED 01.04.2009 PASSED IN OS.NO.15439/2004 ON THE FILE OF THE IV ADDL. CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE, DECREEING THE SUIT FOR PERMANENT INJUNCTION.

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IN RFA NO. 560 OF 2009 BETWEEN:

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SMT. FATIMA, AGED ABOUT 35 YEARS, D/O LATE MOHAMMED IBRAHIM. SINCE DEAD BY LR'S.

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1(a) BEEVI UMMA, AGED ABOUT 71 YEARS,

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W/O LATE HAJJI M MOHAMMED IBRAHIM.

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1(b) MR. HUSSAIN M AGED ABOUT 49 YEARS.

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1(c) MR. HANNAN, AGED ABOUT 49 YEARS.

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1(d) MR. MOHIDEEN, AGED ABOUT 47 YEARS, DEAD.

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1(e) MR. MOHAMMED NOOR, AGED ABOUT 44 YEARS.

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ALL ARE S/O LATE HAJJI M MOHAMMED IBRAHIM, ALL ARE R/O MEPURATH HOUSE, THAZEPALAM TIRUR, MALLAPURAM DIST., KERALA.

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...APPELLANTS

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(BY SRI A GUNASHEKARAN, ADVOCATE FOR A1 [a to c & e]; APPEAL AGAINST A1(d) IS ABATED V/O DATED 02.08.2023)

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AND:

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SRI SANNALINGAPPA, S/O LATE CHIKKAPPAIAH, C/O K.C. NARAYANAPPA, NO.314/A, 1^ST FLOOR, 7^TH MAIN, VYALIKAVAL, BANGALORE - 3. REP.BY HIS SON GPA SRI YEERAPPA SINCE DEAD BY HIS LRS.

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SRI R.S.YEERAPPA, AGED ABOUT 48 YEARS, S/O. LATE SANNALINGAPPA, NO.749 III BLOCK, RAJAJINAGAR, BANGALORE-10.

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SRI JAYARAMA REDDY, AGED ABOUT 42 YEARS, S/O LATE SANNALINGAPPA, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. R.S.NINGAMMA, AGED ABOUT 36 YEARS, W/O.LAKSHMAN, C/O JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. ESWARAMMA, AGED ABOUT 34 YEARS, W/O. RAMAKRISHNAPPA, C/O. JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT. NAGAMMA, AGED ABOUT 32 YEARS, W/O.NAGARAJU, C/O.JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ., TUMKUR DIST.-561 202.

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SMT.SAKAMMA, AGED ABOUT 30 YEARS, W/O. JAYAPPA, C/O. JAYARAMAREDDY, RAJAVANTHI PAVAGADA TQ. TUMKUR DIST.-561 202.

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…RESPONDENTS

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(BY SRI K.K VASANTH, ADVOCATE FOR R1; SRI B.N MURALIDHAR, ADVOCATE FOR R2 TO R6)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE ORDER DATED 01.04.2009 PASSED IN OS.NO.6181/1993 ON THE FILE OF THE IV ADDL. CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE, DECREEING THE SUIT FOR POSSESSION AND MESNE PROFITS.

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IN RFA NO 562 OF 2009 BETWEEN:

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SMT. FATIMA, AGED ABOUT 35 YEARS, D/O LATE MOHAMMEDIBRAHIM. SINCE DEAD BY LR'S.

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1(a) BEEVI UMMA,

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AGED ABOUT 71 YEARS, W/O LATE HAJJI M MOHAMMED IBRAHIM.

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1(b) MR. HUSSAIN M AGED ABOUT 49 YEARS.

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1(c) MR. HANNAN, AGED ABOUT 49 YEARS.

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1(d) MR. MOHIDEEN, AGED ABOUT 47 YEARS, DEAD.

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1(e) MR. MOHAMMED NOOR, AGED ABOUT 44 YEARS.

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ALL ARE S/O LATE HAJJI M MOHAMMED IBRAHIM, ALL ARE R/O MEPURATH HOUSE, THAZEPALAM TIRUR, MALLAPURAM DIST., KERALA.

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...APPELLANTS

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(BY SRI A GUNASHEKARAN, ADVOCATE FOR A1 [a to c & e]; APPEAL AGAINST A1(d) IS ABATED V/O DATED 02.08.2023)

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AND:

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SRI R.S.YEERAPPA, AGED ABOUT 48 YEARS, S/O. LATE SANNALINGAPPA, NO.749 III BLOCK, RAJAJINAGAR, BANGALORE-10.

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SRI JAYARAMA REDDY, AGED ABOUT 42 YEARS, S/O LATE SANNALINGAPPA.

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SMT. R.S.NINGAMMA, AGED ABOUT 36 YEARS, W/O.LAKSHMAN.

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SMT. ESWARAMMA, AGED ABOUT 34 YEARS,

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W/O. RAMAKRISHNAPPA.

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SMT. NAGAMMA, AGED ABOUT 32 YEARS, W/O.NAGARAJU.

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SMT.SAKAMMA, AGED ABOUT 30 YEARS, W/O. JAYAPPA.

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NO.2 TO 6 ARE C/O. JAYARAMA REDDY, RAJAVANTHI PAVAGADA TQ. TUMKUR DIST.-561 202.

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…RESPONDENTS

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(BY SRI K.K VASANTH, ADVOCATE FOR R1; SRI B.N MURALIDHAR, ADVOCATE FOR R2 TO R6)

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THIS RFA IS FILED U/S 96 R/W ORDER 41, R1 OF CPC AGAINST THE ORDER DATED 01.04.2009 PASSED IN OS.NO.10870/1993 ON THE FILE OF THE IV ADDL. CITY CIVIL & SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE, DISMISSING THE SUIT FOR PERMANENT INJUNCTION. THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 07.06.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals filed by Smt. Fatima (now represented

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by her LRs) are directed against the common judgment and decree dated 01.04.2009 passed in O.S.No. 15439/ 2004, O.S.No.6181/1993 and in O.S.No.10870/1993 by the learned IV Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore.

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Brief facts of the case are as below:

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(a) OS No.10870/1993 has been filed by M.

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Fatima against Sannalingappa and his son Yeerappa seeking permanent injunction to restrain the defendants from interfering with her possession over the suit schedule property which is the ground floor and first floor of the building bearing Katha No.278 and 122.

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(b) OS No.6181/1993 is filed against M. Fatima and two others by Sannalingappa (represented by his LRs) for directing M. Fatima to put him possession of the suit schedule property which is the ground floor in the building bearing Katha No.278 and 122 and for recovery of mesne profits from 19-8-1993 at Rs.700/- per month till delivery of possession.

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the sale deed in favour of Mohammed Ibrahim dated 10-04-1992 is null and void and to restrain her from encumbering the suit schedule property which is the First

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floor of the building with katha No.278 and 122 and delivery of possession and also for mesne profits of Rs.36,000/- per month from 1-4-2001 till the date of suit and for an enquiry for future mesne profits till the possession is handed over to him.

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(d) During the pendency of all the suits, Sannalingappa died and his LRs were brought on record. The trial Court clubbed all these suits and a common evidence was led in OS No.10870/1993 and a common judgment was rendered on 01-04-2009 whereby OS No.10870/1993 came to be dismissed, OS No.6181/1993 was decreed as prayed for and OS No.15439/2004 was decreed as prayed and by holding that the plaintiffs therein were entitled for mesne profits of Rs.25,200/- till date of suit and future mesne profits at Rs.700/- per month from the date of suit till the date of possession. The said M. Fatima was also restrained from encumbering the suit schedule property in any way.

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(e) Assailing the said judgments M. Fatima has approached this Court in these appeals. During the

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pendency of these appeals, appellant M. Fatima died and her LRs were brought on record.

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The factual matrix of the case leading to these appeals as may be found from the pleadings is as below:

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(a) The appellant/plaintiff M. Fatima in OS

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No.10780/1993 contended that the suit schedule property was purchased by one Pushpakalyani under the sale deed dated 06-09-1972 and she died intestate leaving behind

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her, her husband David Issac, six sons and five daughters. The father of M. Fatima was a tenant on the first floor of the suit schedule property under Pushpakalyani. Later, father of the plaintiff Mohammed Ibrahim purchased the suit schedule property from the sons and daughters of Pushpakalyani under the sale deed dated 10-04-1992 and he was put in possession of the same. Thereafter, Mohammed Ibrahim, gifted the suit schedule property to the plaintiff -M.Fatima under oral gift (Hiba) and the plaintiff had accepted the same along with the possession.

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A declaration was also executed by Mohammed Ibrahim confirming the gift.

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(b) She further contended that defendants i.e., Sannalingappa and Yerrappa are claiming to have purchased the suit schedule property from LRs of Pushpakalyani. Sannalingappa had filed HRC No.232/1987 against Mohammed Ibrahim in respect of the first floor of the suit schedule property wherein the plaintiff M. Fatima was also impleaded later. She contended that ground floor of the suit schedule property was in possession of one of

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the legal representative of Pushpakalyani at the time of the purchase by Mohammed Ibrahim and M.Fatima filed eviction petition against him and obtained possession in Execution No.6668/1993 through Court. Therefore, the defendants i.e., Sannalingappa and Yerrappa have no right, title or possession over the suit schedule property and they are trying to dispossess the plaintiff.

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(c) The defendants i.e., Sannalingappa and Yerrappa, in their written statement admitted that the property was owned by Pushpakalyani. Later, her husband

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David Issac and her sons had sold the suit schedule property in favor of Sannalingappa under the sale deed dated 06-03-1986. The said Pushpakalyani had no daughters and therefore, the alleged sale deed executed in favor of Mohammed Ibrahim on 10-04-1992 being a subsequent sale deed is not binding on the defendants. After purchase by defendant No.1 Sannalingappa, he intimated the plaintiff M. Fatima and her father Mohammed Ibrahim, and the tenancy of Mohammed Ibrahim was attorned in favor of defendant No.1. In HRC

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No.232/1987, it was held that the defendant No.1 Sannalingappa is the landlord and Mohammed Ibrahim was the tenant. It was challenged in CRP No.560/1991 and later, it was withdrawn by the plaintiff - M. Fatima. The defendants have also withdrawn the rents deposited by the plaintiff in the revision petition. It was alleged that plaintiff M. Fatima managed to get possession of the property from tenants by colluding with them and therefore, the defendants Sannalingappa and Yerrappa have filed OS No.6181/1993 for possession and other

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reliefs. They also denied that a legal representative of Pushpakalyani was in possession of ground floor of suit schedule property and the plaintiff got possession in Execution Petition No. 6668/1993. Therefore, they sought dismissal of the suit filed by M. Fatima.

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(d) The defendant Sannalingappa in his suit in OS No.6181/1993, has contended the same facts as mentioned in the written statement of OS No.10870/1993. Additionally, he contended that defendant No.2 in OS No.6181/1993 is the son of Pushpakalyani and he has also signed the sale deed in favor of defendant No.1 as a consenting witness. He contended that in pursuance to the sale deed dated 06-03-1986, he was put in possession of the ground floor and symbolic possession of the first floor as it was in possession of Mohammed Ibrahim as tenant. Since the date of purchase, he has paid the taxes and property is mutated in his name. He further contended that Yerrappa, son of Sannalingappa, was in possession of ground floor till December 1992 when he was transferred to Kolar. However, he retained one room in the ground

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floor and the rest of the portion was let out to defendant No.3 on a monthly rent of Rs.700/- as per the lease deed dated 18-12-1992 and 09-09-1993. It was alleged that defendant No.1 M. Fatima and defendant No.2 Robinson, who is the son of Pushpakalyani, had colluded with the tenant defendant No.3 and had taken possession. It was alleged that M. Fatima had also filed HRC No.713/1993 against defendant No.2 Robinson and obtained order of eviction and ultimately, took possession of the ground floor. Therefore, it was alleged that the possession of M.

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Fatima is illegal possession. During the same time, Fatima and Robinson have also concocted a sale deed dated 10-04-1992 in favor of Mohammed Ibrahim, which is invalid for want of title. Therefore, contending that the sale deed in favour of Sannalingappa dated 06-03-1986 has remained unchallenged and defendant No.1 Fatima being in illegal possession, the possession and mesne profits at the rate of Rs.700/- per month was sought by the plaintiff Sannalingappa.

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(e) Defendant No.1- M. Fatima in OS No.6181/1993 took up identical contentions as taken by her in OS

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No.10870/1993. She has denied the sale deed dated 06-03-1986 and the possession of Sannalingappa in pursuance of the said sale deed.

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(f) Defendant No.2 Robinson did not appear despite service of summons and as such placed exparte. For want of taking steps, the suit against defendant No.3 came to be dismissed.

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(g) The case of plaintiff Sannalingappa

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(represented by his LRs) in OS No.15439/2004 is also same as per his contentions in OS No. 6181/1993. It is stated that HRC No.232/1987 filed by him came to be dismissed by order dated 01-08-1995 directing the parties to approach the Civil Court since M. Fatima had denied the relationship. He claimed that the defendant -M. Fatima has no right, title or interest in the suit schedule property and therefore, sought possession and mesne profits as mentioned supra.

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(h) In the written statement in OS No.15439/2004,

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M. Fatima has taken up the same contentions as taken by

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her in her suit OS No.10870/1993.

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Before clubbing of the cases, the son of Sannalingappa was examined as PW1 and Exs.P1 to P42 were marked. Defendant- M. Fatima was examined as PW1 and Exs.P1 to P9 were marked and after clubbing of the cases, she is referred to as PW1 and the documents which were marked earlier as well as later are together referred to as Exs.D1 to D13.

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5. Based on the above pleadings, the trial Court

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framed the issues in all the case and after hearing the

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arguments, they were answered as below:

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	O.S No. 10870/1993 (filed by M Fatima)
Sl. No.	Issues	Answers
1.	Whether the plaintiff proves that she is the owner in possession of suit property?	Plaintiff has failed to prove her title, in the negative.
2.	Whether the plaintiff proves that the possession of ground floor was given to her by Court Ameen in E.P No. 6668/93 as averred in para-No.4 of plaint?	In the affirmative
3.	Whether the plaintiff proves that on 26.6.83, the defendants attempted to take forcible possession of suit property	In the affirmative

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	from the plaintiff?
4.	Whether the Defendant No.1 proves that he purchased the suit property about 12 yrs, ago, and that the plaintiff is a tenant in the first floor of the premises?	In the affirmative
5.	Whether the plaintiff is entitled to reliefs as prayed for?	In the negative
6.	What order or decree?	As per final order

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	O.S No. 6181/1993 (Filed by Sannalingappa)
Sl. No.	Issues	Answers
1.	Whether the plaintiff proves that he is the absolute owner of the suit schedule property?	In the affirmative
2.	Whether the plaintiff further proves that the 1^stdefendant illegal took possession of the ground floor of the suit schedule property?	In the affirmative
3.	Whether the Court fee paid is sufficient?	In the affirmative
4.	Whether the plaintiff is entitled for possession of the ground floor of the suit schedule property?	In the affirmative
5.	Whether the plaintiff is entitled for mesne profits as claimed?	As per final order
6.	What decree or order?	As per final order

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	O.S No. 15439/2004 (Filed by Sannalingappa)
Sl.	Issues	Answers
No.
1.	Whether the plaintiff proves that the Sale Deed dated 10.4.92 is null and void and not binding on the plaintiffs?	In the affirmative
2.	Whether the plaintiff are entitled for vacant possession of suit schedule property?	In the affirmative
3.	Whether the plaintiffs are entitled for mesne profits of Rs.36,000/- from 1.4.2001?	Plaintiff is entitled for past mesne profit of Rs.25,200/- future mesne profit at Rs.700/- from the date of suit till the date of possession.
4.	Whether the plaintiffs are entitled for the relief of permanent injunction as sought	In the affirmative

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	for?
5.	To what order or decree?	As per final order
Addl	.Issues
1.	Whether the suit is barred by limitation?	In the negative
2.	Whether the court fee paid is propert?	In the affirmative

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Being aggrieved by the said common judgment, M. Fatima has filed RFA No.561/2009 in respect of OS

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No.15439/2004, RFA No.560/2009 in respect of OS No.6181/1993 and RFA No.562/2009 in respect of OS No.10870/1993.

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On issuance of notice, respondent No.1 and respondents No. 2 to 6 in all the appeals appeared through their counsel Sri K.K.Vasanth and Sri B.N.Muralidhar respectively before this Court. During the pendency of these appeals, appellant M. Fatima died and her LRs were brought on record.

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On admitting the appeal, the trial Court records have been secured and heard the arguments by counsels for respective parties.

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Learned counsel appearing for the appellant M. Fatima, in all these appeals contended that the trial Court while answering issue Nos. 1 and 4 in OS No.17870/1993 and issue No.1 in OS No.6181/1993 and in OS No.15439/2004 held that M. Fatima failed to prove that she is in possession of the suit schedule property as owner and the other issues were answered in the affirmative resulting in decreeing of the suit filed by defendant Sannalingappa. He submits that the trial Court has totally erred in drawing proper inferences from Ex.P27, P28 and P29 coupled with Exs.D2 and D6. He submits that there is no dispute that the vendors of the appellant and respondents are Indian Christians governed by Indian Succession Act, particularly, Section 33 of the said Act, in the matter of inheritance. Therefore, applying the provisions of Section 33 of the Indian Succession Act on the demise of Pushpakalyani, her husband David Issac inherited 1/3^rd undivided share in the schedule property while the children inherited 2/3^rd undivided share in the schedule property. Therefore, David Issac was entitled to

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sell only his 1/3^rd undivided share in the suit schedule property. He submits that his sons had only signed as consenting witnesses and it cannot be construed that they had also executed the sale deed in respect of their share also. He submits that Ex.P27 sale deed under which the respondents claim cannot confer absolute right in respect of the entire property. Moreover, Ex.P27 does not show that David Issac had executed the sale deed for himself and as a power of attorney holder of his sons. Such mentioning of the power of attorney, which is at Ex.P 28, is conspicuously absent in the sale deed.

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He submits that the trial Court has misread the covenants of the sale deed at Ex.P27 in arriving at conclusion that respondent is owner of the schedule property. It has not bestowed its attention on Section 33 of the Indian Succession Act. He further submits that conjoint reading of Exs.P28 and P29 along with P27 would not show that the children of David Issac had sold their share to David for a sum of Rs.60,000/-. But no such sale

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deed is forthcoming on behalf of the defendants. He submits that to fill the lacunae of absence of the sale deed, the contention of applicability of Section 41 of the Transfer of Property Act, is pressed by raising the plea of ostensible owner. He has drawn the attention of this Court to the averments of the plaint in OS No.6181/1993 and OS No.15437/2004 to show that there are no such averments that while executing Ex. P27, he acted as ostensible owner on behalf of his children.

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He also contended that Ex P28, the GPA executed by the sons of David Issac is not registered or executed before the Sub-registrar, as required under Section 32 and 33 of the Registration Act, and therefore, it is not believable.

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He further contended that the trial Court had committed serious jurisdictional error in holding that the entire schedule property is acquired by respondent and consequently, respondent is the absolute owner of the same. The respondent-Sannalingappa had not acquired

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any right in excess of 1/3^rd share of David Issac and therefore, such a contention cannot be entertained. He has drawn the attention of this Court to Ex. D2, wherein, the 6 sons and 5 daughters of David Issac and Pushpakalyani have executed the sale deed in favor of Mohammad Ibrahim and it clearly shows that as absolute joint owners, the sale deed came to be executed.

¶167

He submits that the trial Court while answering additional issue No.1 in OS No.15439/2004 holds that the Limitation is 12 years for possession of any immoveable property and the plaintiff Sannalingappa is in possession as owner since 1982 and the contention that Mohammed Ibrahim was owner of the property was raised for the first time in HRC proceedings. Therefore, the rent Court had dismissed the matter directing the parties to approach the Civil Court and as such, the suit filed in the year 2004 is in time. It is submitted that such a contention of the defendants was taken up by them in HRC proceedings and therefore, the limitation should run from taking up of such

¶168

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contention. It is submitted that the trial Court failed to notice that in a suit for possession and for cancellation of the sale deed dated 10-4-1992, the suit should have been filed within 10-4-1995. Therefore, the suit is hopelessly time barred.

¶170

In support of his contention, he has placed reliance on the following judgments:

¶171

Yellapu Uma Maheswari & Another Vs. Buddha Jagadheeswararao & Others¹

¶172

Jitendra Singh Vs. The State of Madhya Pradesh & Others²

¶173

H Lakshmaiah Reddy & Others Vs. L Venkatesh Reddy³

¶174

Ghanshyam Vs. Yogendra Rathi

¶175

15 . Per contra, the learned counsel appearing for

¶176

the respondent Sri K.K.Vasanth, submits that plaintiff M. Fatima admit that the property was purchased by Pushpakalyani and that the defendant Sannalingappa had filed HRC No.232/1987 against Mohammed Ibrahim basing

¶177

1 (2015) 16 SCC 787

¶178

2 SLP (C) No. 13146/2021

¶179

3 (2015) 14 SCC 784

¶180

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¶181

on the sale deed dated 06-03-1986 executed by David Issac and his five sons. However, it is the contention of the defendant that David Issac and Pushpakalyani had six sons and five daughters who executed a registered sale deed on 10-04-1992 and thereafter, Mohammed Ibrahim gifted the property to M. Fatima under a Hiba. He points out that contention in respect of the ownership of the property by Mohammed Ibrahim was not raised in the objection statement filed in HRC No.232/1987. It was only after Ex.D2 dated 10-04-1992 that the plaintiff M. Fatima claimed title. Therefore, the sale deed dated 10-04-1992, being subsequent one, does not transfer any title.

¶182

He further contends that there is absolutely no evidence on record to show that said David Issac and Pushpakalyani had six sons and five daughters. Therefore, the daughters of Pushpakalyani have also had share in the suit schedule property is unfounded and unbelievable.

¶183

He submits that the general power of attorney executed by all the sons of David Issac and Pushpakalyani

¶184

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¶185

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¶186

authorizing David Issac to convey the suit schedule property is produced at Ex.P28. In addition to it, the sons

¶187

of David Issac had also executed a joint affidavit as per Ex.P29 reiterating the Ex.P28 and that they had received consideration amount and as such, they are authorizing David Issac to convey the suit schedule property. Therefore, a conjoint reading of Ex.P27, P28 and P29 would show that David Issac was an ostensible owner and with consent of the persons interested in the immoveable property, he has sold the property to Sannalingappa and as such, the transfer is not voidable as per Section 41 of the Transfer of Property Act.

¶188

He also points out that the cross-examination of Yerrappa son of Sannalingappa does not refer to Ex.P28 and Ex.P29 and he had denied the suggestion that David Issac had six sons and five daughters and therefore, he could convey his 1/3^rd share only to Sannalingappa. No effort was made by M. Fatima to prove such contentions

¶189

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¶191

and as such, the finding of the trial Court in this regard cannot be interfered with.

¶192

It is further pointed out that Ex.P11 is the notice issued by Mohammed Ibrahim and he never refers to the sale deed but even then it was addressed to Sannalingappa. Hence, Mohammed Ibrahim by participating in HRC No.232/1987 had the direct knowledge of the sale deed at Ex.P27 much prior to the sale deed of 1992 and as such, without seeking annulment of the said sale deed, could not have contended title over the property. No relief is claimed by M. Fatima in respect of the sale deed relied by her at Ex.D2 which is dated 10-04-1992.

¶193

He further argued that none of the children of David Issac have stated anywhere that their father David had sold the property without their consent. Ex.P29 is not denied by any of the children of David Issac. He has drawn the attention of the Court to the fact that none of the sons of David Issac have questioned Ex.P27. He also

¶194

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¶196

points out that it is Article 65 of the Limitation Act, which

¶197

is applicable and at no stretch of imagination it can be held

¶198

that Article 58 of the Limitation Act, is applicable. Therefore, he has sought for dismissal of all these appeals.

¶199

In support of his arguments, he has relied on the following judgments:

¶200

Crystal Developers Vs. Ashalatha Ghosh (since deceased through LRs) and Others⁴

¶201

Hardev Singh Vs. Gurmail Singh (Dead) By LRS⁵

¶202

Syed Abdul Khader Vs. Rami Reddy and Others⁶

¶203

Seshumull M Shah Vs. Sayed Abdul Rashid & Others⁷

¶204

Smt. Niranjan Kaur and Others Vs. The Financial Commissioner, Revenue and Secretary to Government, Punjab and Others⁸

¶205

4 (2005) 9 SCC 375

¶206

5 (2007) 2 SCC 404

¶207

6 AIR 1979 SC 553

¶208

7 AIR 1991 KAR 273

¶209

8 AIR 2011 Punjab and Haryana-1 Full Bench

¶210

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¶211

In the light of the above submissions by both the sides, the points that arise for consideration in these appeals are as below;

¶212

(i) Whether the sale deed executed by David Issac at Ex.P27 is valid for entire suit schedule property or it binds only his share to the extent of 1/3^rd ?

¶213

(ii) Whether the suit filed by Sannalingappa in OS No.15439/2004 is barred by limitation?

¶214

(iii) Whether the impugned common judgment of the trial Court needs to be interfered with?

¶215

Re.Point No.1:

¶216

The appellant- M. Fatima contends that in the year 1992, David Issac and his six sons and five daughters have executed a sale deed in favour of her father Mohammed Ibrahim and therefore, Mohammed Ibrahim had obtained the title in respect of the suit schedule property. On the contrary, defendant Sannalingappa contend that David Issac and

¶217

Pushpakalyani had only five sons and they had executed power of attorney as per Ex.P29 and as such, the sale

¶218

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¶219

deed executed by David Issac in favour of Sannalingappa as per Ex.P27 would prove the title of the defendants Sannalingappa and therefore, when the alleged sale deed was executed by the children of David Issac and Pushpakalyani in the year 1992, no title had passed to Mohammad Ibrahim. Thus, the first aspect to be considered is, whether the plaintiff M. Fatima has been able to prove that David Issac and Pushpakalyani had six sons and five daughters?

¶220

A perusal of the evidence available on record would show that there is no evidence to establish that David Issac and Pushpakalyani had five daughters. Ex.D2 which is the sale deed allegedly executed by the six sons and five daughters of David Issac, is the only piece of evidence produced by M. Fatima. None of the children of Pushpakalyani have been examined by her. Evidently, PW1 Yerrappa in his cross-examination has denied that Pushpakalyani and David Issac had five daughters also. None of these five daughters were examined before the

¶221

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¶222

trial Court. There are no documents which would show that Pushpakalyani and David Issac had five daughters and such fact was admitted by them any time during their life time. Therefore, it cannot be said that Pushpakalyani had five daughters also. Ex.D2 cannot serve this purpose as it evidently came into existence in the year 1992, when the lis had already begun in the form of HRC No.232/1987.

¶223

The next aspect would be whether David Issac was ostensible owner of the suit schedule property? Section 41 of the Transfer of Property Act, reads as below:

¶224

"41. Transfer by ostensible owner—

¶225

Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith".

¶226

Learned counsel appearing for the appellant

¶227

M. Fatima contend that it is the case of the defendants

¶228

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¶229

(Sannalingappa) that David Issac executed the sale deed on the basis of the General power of attorney (GPA) executed by his children and the said GPA is at Ex.P28. He submits that Ex.P28 is hit by the requirement of registration and therefore, it cannot confer any right to alienate the property on David Issac.

¶230

It is pertinent to note that the right of David Issac to alienate the property on his own behalf as well as on behalf of his sons emanates from Ex.P28 and Ex.P29 and that he was managing the affairs of the family, as an ostensible owner. Therefore, it is necessary to look into Ex.P28 and Ex.P29 before considering the admissibility or otherwise of Ex.P28.

¶231

Ex.P28- GPA would show that it is executed by

¶232

five sons of David Issac i.e., George, Clarence, Imanuel, Israel and Robinson Ratnakumar.

¶233

In Ex.P28, it is stated that they are unable to manage the property and they have authorized David

¶234

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¶235

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¶236

Issac to "convey the schedule property by way of sale, mortgage, lease, gifts etc., or otherwise, to fix up full consideration, to receive, to execute deeds, to admit execution of the same in the concerned Sub Registry office and to complete the registration." This GPA is executed before a Notary.

¶237

In support of the said document, a joint affidavit was also executed by them as per Ex.P29, where there is a reference that they have sold their rights in favour of David Issac and they had received consideration amount of Rs.60,000/-. Evidently, sale deed/ relinquishment deed by them is not available before the Court and the Ex.29 is not a registered document.

¶238

Learned counsel appearing for the appellant M. Fatima would point out that Sections 32 and 33 of the Registration Act require such GPA to be executed before the Sub-Registrar. I am afraid, such a contention could be raised by the appellant, for, Section 33 applies only when a document is presented for registration by a person other

¶239

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¶240

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¶241

than the executor. The expression ‘person executing’ used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person and may include either the principal or his agent. Therefore, when a person holds a power of attorney which authorises him to execute a document as agent for some one else and he executes the document under the terms of power of attorney, he is so far as the registration office is concerned, the actual executant of the document and he

¶242

is entitled under Section 32 to present it for registration and get it registered. Therefore, it follows that the sale deed which was executed and authenticated by David Issac was to be presented for registration by him.

¶243

The judgment in the case of Yellapu Uma Maheswari (supra) lays down that the nomenclature given to the document is not decisive matter but the nature and substance of the matter has to be determined with reference to the contents and that the admissibility of

¶244

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¶245

the document is dependent upon the recitals contained in it. No doubt the said proposition may be applied to Ex.P29,

¶246

but it cannot be overlooked that it can be relied for collateral purpose (as an affidavit) for understanding the role played by David Issac.

¶247

The case of Jitender Singh vs State of Madhya Pradesh and the case of H.Lakshmaiah Reddy referred supra are concerning the effect of the mutation entries and as such are not applicable to the case on hand. Similarly, the case of Suraj Bhan and others is also in respect of the effect of the mutation entries sans any registered document of conveyance.

¶248

In the case of Ganashyam Vs. Yogendra Rathi referred supra, it was held that the power of attorney alone cannot call for any title when no action was taken on the basis of the power of attorney to execute the sale deed. In the case on hand, the sons of David Issac had executed the power of attorney as per Ex.P28 but without referring to Ex.P28, David Issac executed the sale

¶249

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¶250

deed as per Ex.P27. Hence, this judgment is not of any help to the appellant.

¶251

There is no dispute that David Issac is the husband of Pushpakalyani and under Ex.P27 and Ex.P28, David Issac had admitted that the executants of Ex.P28 are his sons.

¶252

A conjoint reading of Ex.P27, Ex.P28 and Ex.P29 would show that David Issac was acting on his own behalf as well as on behalf of his children who had authorized him to alienate the property. Therefore, David Issac being the father of five children of Pushpakalyani, was empowered by the consent of his children to alienate the property.

¶253

A perusal of Ex.P27, would show that David Issac claims that he had purchased the property in the name of his wife. The entire suit schedule property was sold by him in favour of Sannalingappa. Non mentioning the names of his five children and absence of any

¶254

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¶255

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¶256

reference to the GPA cannot be a sufficient circumstance to discard Ex.P27.

¶257

Coming to the contention of ostensible owner, in the judgment of the Apex Court in the case of Crystal

¶258

Developers Vs. Asha Lata Ghosh (Smt)(dead)

¶259

through LRs and others referred supra, in para 57 and 58, the Apex Court observes as below:

¶260

"57. In the case of Gurbaksh Singh v. Nikka Singh¹⁶ it has been held that Section 41 is an exception to the general rule that a person cannot confer a better title than what he has. Being an exception the onus is on the transferee to show that the transferor was the ostensible owner of the property and that the transferee had after taking reasonable care to ascertain that the transferor had power to transfer, acted in good faith.

¶261

In the case of Seshumull M. Shah v. Sayed Abdul Rashid17 it has been held that in every case, where a transferee for valuable consideration seeks protection under Section 41 of the Transfer of Property Act, the transferee must show that the real owner had permitted the apparent owner either by express words, consent or conduct to transfer the

¶262

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¶263

property in favour of the transferee. In other words, it must be shown that with the consent of the true owner, the ostensible owner was able to represent himself as the owner of the property to the purchaser for value without notice."

¶264

Similarly, the Apex Court in the case of Hardev Singh Vs. Gurmail Singh (dead) by LRs , referred supra

¶265

in para 9 and 10 holds as below:

¶266

"9. Application of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained, he could not question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

¶267

The ingredients of Section 41 of the Act are:

¶268

(1) the transferor is the ostensible owner;

¶269

(2) he is so by the consent, express or implied, of thereal owner;

¶270

(3) the transfer is for consideration;

¶271

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¶272

(4) the transferee has acted in good faith,Taking reasonable care to ascertain that the transferor had power to transfer."

¶273

In the case of Syed Abdul Khader Vs.

¶274

Ramireddy and others referred supra, the Apex Court while referring to the principles of ostensible owner enunciated in Section 41 of Transfer of Property Act and the report of the Judicial Committee in Ramcoomar Vs. Macqueen observes as below:

¶275

"It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it."

¶276

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¶277

Similarly, in Seshumull M. Shah Vs. Sayed Abdul Rashid and others' case referred supra, this Court had relied on the principles laid down in the report of the Judicial Committee reproduced supra.

¶278

The Apex Court in the case of Smt. Niranjan Kaur and others Vs. Financial Commissioner, Revenue Secretary to Government, Punjab and others referred supra has observed in para 37 as below:

¶279

"37. On consideration of the contentions and the reference, we are of the view, that it cannot be disputed that in order to succeed in a plea of bona fide purchaser, under Section 41 of the Property Act, it is to be proved, that the transferor is ostensible owner. That he is so with the consent, express or implied, of the real owner. That the transfer is for consideration, and that the transferee has acted in good faith taking reasonable care to ascertain that the transferor had the power to transfer."

¶280

In the case on hand, Sannalingappa knew that the sons of David Issac also need to consent for the sale of the suit schedule property and as such, the power of

¶281

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¶283

attorney as per Ex.P28 was obtained by him from David Issac. Also Sannalingappa ascertained that the sons of

¶284

David Issac had consented by virtue of an affidavit as per Ex.P29. Therefore, the condition Nos.2 and 4 as laid down above are sufficiently fulfilled. So also, the Ex.P28 showed that David Issac was the owner of the property and the transfer is for consideration. Hence, the transaction between David Issac and Sannalingappa fulfils all requirements of Section 41 of Transfer of Property Act.

¶285

In the case on hand, the father of the appellant M. Fatima purchased the property from the sons and daughters of David Issac in the year 1992, despite he knew the fact that the property was sold by David Issac in favour of Sannalingappa in the year 1986. The defendant Sannalingappa has produced all the title deeds under which the property changed hands, which may be found at Exhibits -P30 dated 06-09-1972 and P31 dated 30-111970. Moreover, Mohammed Ibrahim denies the sale deed dated 06-03-1986, basing on which Sannalingappa had

¶286

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¶287

initiated HRC No.232/1987. Despite such knowledge about the claim of Sannalingappa, he ventures to purchase the property under the sale deed as per Ex.D2, after the demise of David Issac. Therefore, it cannot be said that Ex.D2 is a valid sale deed since David Issac had parted with the title in the suit schedule property in the year 1986 itself. Conspicuously, Ex.D2 does not mention that the sale is for 2/3 share of sons and daughters of David Issac.

¶288

The contention of the learned counsel appearing for the appellant that the parties are Christians and therefore, David Issac could not have sold the property of his children is redundant in view of Ex.P28 and Ex.P29 and also that David Issac acted as ostensible owner under the express consent of his five sons. Therefore, point No.1 raised above is answered in the affirmative.

¶289

Re.Point No.2:

¶290

The learned counsel appearing for the appellant M.Fatima has contended that OS No.15439/2004 is barred

¶291

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¶292

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by limitation. He contends that, the trial Court has committed a serious error in holding that the suit should have been filed within 12 years since it is Article 65 of the Limitation Act which is applicable. He submits that notwithstanding the suit for possession, the prayer was also for cancellation of the sale dated 10-04-1992, which is at Exhibit D2. Therefore, the suit should have been filed on or before 10-04-1995. Evidently, OS No.15439/2004 was filed on 23-03-2004 which is beyond the period of limitation. Therefore, he argued that it is Article 58 of the Limitation Act which is applicable and as such, the suit is hopelessly time barred.

¶294

It is pertinent to note that, the prayer in OS No. 15439/2004 not only include the declaration that Ex.D2 is void, but also that the plaintiffs- Sannalingappa and Yerrappa are entitled for possession of the suit schedule property. It is their contention that they came to know about the execution of Ex.D2 only when it was contended by M. Fatima in OS No.10870/1993 and therefore, the suit

¶295

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filed by them in the year 2004 by virtue of Article 65 of the Limitation Act is well in time. It may be noted that the prayer in OS No.15439/2004 is not only for cancellation of the sale deed at Ex.D2, but also for possession of the property. Such claim of possession of the property is since the HRC No.232/1987, under which Sannnalingappa had sought for eviction of the tenant came to be dismissed with a direction for the petitioner therein to approach the Civil Court. It is evident that the said HRC No.232/1987 came to be dismissed on 01-08-1995. It is not known

¶297

when exactly the plaintiff M. Fatima contended that she is owner of the suit sschedule property on the basis of the sale deed executed in favour of her father, Mohammad Ibrahim and the Hiba by him in favour in her favour. Nevertheless, the defendants Sannalingappa and his son had contended that they came to know about the alleged sale deed of Mohammad Ibrahim as per Ex. D2 and such knowledge was stated by them in the year 1993 when OS No.6181/1993 was filed by them. Therefore, at the most, the limitation runs from the date of filing of

¶298

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¶299

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¶300

OS No.6181/1993, which was filed on 04-10-1993. Thus, the limitation for possession, which is governed by Article 65 of the Limitation Act, starts to run from the said date. The present suit is filed in the year 2004 and therefore, the contention of the learned Counsel appearing for the appellant M. Fatima that OS No.15439/2004 is not maintainable as it is hit by Limitation cannot be accepted. In the result, point No.2 is answered in the Negative.

¶301

Re.Point No.3:

¶302

The trial Court has considered the contentions regarding the mesne profits and has directed the plaintiff/appellant M. Fatima to hand over the possession of the suit schedule property to the defendants. No grounds are urged in respect of the mesne profits before this Court. In view of the aforesaid discussions, the appeals filed by appellant-M. Fatima (now represented by her LRs) are liable to be dismissed. The common judgment of the trial Court deserves to be upheld. Hence the following:

¶303

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¶305

ORDER

¶306

(i) RFA No.560/2009, RFA No.561/2009 and RFA

¶307

No.562/2019 are hereby dismissed with costs.

¶308

(ii) The common judgment of dismissing of the suit in OS No.10870/1993; decreeing of the suit in OS No.6181/1993 and in OS No.15439/2004 passed by the trial Court on 01-04-2009 is upheld.

¶309

(iii) The appellants, who are legal heirs of M. Fatima, are directed to hand over the vacant possession of the suit schedule properties within three months from the date of this judgment. They are also liable to pay the mesne profits as determined by the Trial Court.

¶310

Sd/JUDGE

¶311

tsn*

¶312

List No.: 1 Sl No.: 1

Smt Fatima v. Sri Sannalingappa

Case brief

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Smt Fatima v. Sri Sannalingappa

Case brief

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